What Are Removal Proceedings for Deportation?

In this article, we’ll use the terms “removal” and “deportation” interchangeably. Both refer to legal proceedings in which the U.S. government expels or sends a non-U.S. citizen back to their home country. “Removal” is more often used in immigration statutes and court documents. Media sources typically use the term “deportation.”

This article explains the steps involved in these proceedings and what to expect if facing a potential deportation.

If you are facing deportation proceedings, contact an immigration attorney. Even if you do not have a legal immigration status, your conversations with an immigration attorney are protected by the attorney-client privilege. They can’t report you to immigration authorities, and you cannot get arrested for seeking legal advice.

Understanding Removal Under US Immigration Law

Removal is a legal action where the government decides whether to allow someone to remain in the United States or orders them to leave the country. The proceeding often arises when a noncitizen allegedly violates U.S. immigration laws or commits a crime.

Some circumstances that can trigger removal proceedings include:

• Immigration authorities deny a conditional green card holder’s adjustment of status due to suspected marriage fraud
• A student overstays their visa after completing their academic program
• U.S. Immigration and Customs Enforcement (ICE) arrests someone they suspect is in the country unlawfully

Removal proceedings often happen alongside a criminal case. Convictions for certain crimes, including some misdemeanors, can trigger removal proceedings.

How the Deportation Process Works

Removal proceedings are the legal process for deporting foreign nationals. They often begin with a Notice To Appear. This is followed by a hearing before an immigration judge. The outcome will result in either dismissal of the case or a removal order.

The removal process involves several government agencies:

• U.S. Citizenship and Immigration Services (USCIS) handles lawful immigration into the country
• U.S. Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), is responsible for enforcement and removal operations
• The Executive Office for Immigration Review (EOIR) oversees immigration court procedures

The removal proceedings typically have three critical stages:

Step 1: Notice To Appear

The removal proceeding begins with issuing and filing a Notice to Appear (NTA). The NTA is a charging document instructing you to appear before an immigration judge. DHS issues and files this document with the immigration court.

The NTA has various functions in an immigration case. It explains why the U.S. government thinks you are deportable. It also gives notice of the issues you must look out for when presenting your case before the immigration court. Try to respond promptly to NTA, as delays could cause severe consequences.

The notice tells the individual to appear before an immigration judge. It usually includes the following information:

• Nature of the proceedings
• Legal authority under which the proceedings are being brought
• Foreign nationals’ alleged acts that violated the law
• Charges filed against the foreign national and the statutory laws that have been allegedly violated
• A foreign national’s ability to be represented by an attorney at their own expense
• Consequences of failing to appear at scheduled hearings

The removal proceeding starts after filing the NTA in the immigration court.

Step 2: Master Calendar Hearing

The first hearing in an immigration case is often called the master calendar hearing. This can be one or a series of hearings before the removal trial. The judge may set the schedule for your case, including waiver submission or eligibility for other types of defense against removal.

During a master hearing, an immigration judge will ask for basic information like:

• Name and address
• If you’ll have an attorney representing you during the proceedings
• If you’ll require a translator, and if so, in what language

After the initial master hearing, the court may set future hearings to secure additional documents, prepare evidence, conduct discovery, or await the status of the pending application with the USCIS.

Step 3: Individual Hearing

The trial during a DHS deportation case is called the individual hearing. During the individual hearing, the U.S. government will present pieces of evidence against you for removal.

As a defense, you may seek different forms of relief. These include cancellation of removal, voluntary departure, or asylum status. Note that each form of relief has specific eligibility requirements. This may include demonstrating a credible fear of persecution for asylum seekers and maintaining good moral character.

Each side will make an opening statement, present witnesses, and prepare exhibits. The hearing will also depend on the charges against the immigrant. For an individual who committed an aggravated felony or other criminal offense, the court may handle the merits hearing following criminal procedures. Criminal charges are tried separately, often in state court.

The government has to prove that you are removable or deportable from the country. If you fail to attend the hearing, the immigration court will likely grant your removal. Keep track of the hearing date and update your address with the court if it changes.

Possible Step 4: Attend Any Extra Court Hearings

Depending on your case, you may be required to attend additional hearings. Each of these hearings will serve a specific purpose. Although it is not applicable in all cases, it is helpful to know in case you encounter one.

Bond Redetermination Hearings

In some cases, a foreign national detained by DHS can be released from custody upon bond payment. A bond is a sum of money paid as bail, which a person forfeits if they fail to appear at a required hearing.

The bond is initially set by DHS, but the amount is not set in stone. You can request a bond hearing to adjust the amount based on several factors, which may include your employment situation, immigration status, and criminal history.

During the bond hearing, the immigration judge can change the bond amount set by DHS. Either the foreign national or DHS can appeal a decision of a bond hearing to the Board of Immigration Appeals (BIA).

Bond hearings are a separate proceeding from the removal process. It is a temporary measure for your release from detention until you appear in immigration court.

Rescission Hearings

Rescission is a separate process that can lead to removal proceedings. USCIS can rescind (cancel) someone’s green card if the agency believes it was obtained improperly.

The rescission process begins when USCIS issues a Notice of Intent to Rescind (NOIR). This document explains why USCIS believes the person was not eligible for permanent residence when they got their green card. Common reasons for rescission include:

• Marriage fraud (entering a fake marriage to obtain status)
• Providing false information on immigration applications
• Failing to disclose criminal history or immigration violations

An immigration judge reviews the evidence to determine whether the person should have received a green card. If the judge finds that the permanent residence was obtained improperly, they will cancel the green card status.

If someone’s green card is rescinded, they are typically placed in removal proceedings. Then they’ll go through the process above to determine whether they must leave the United States.

Note that rescission is different from deportation proceedings for current violations:

• Rescission looks back at whether someone should have received their green card in the first place
• Removal proceedings address current violations of immigration law or criminal activity

If you receive a NOIR, it’s crucial to seek legal representation. Rescission can have serious consequences for your ability to remain in the United States.

5 Ways To Stop Removal From the U.S.

Even if the immigration judge finds you removable from the country, you may still have options. There are legal procedures that can prevent deportation in some cases. These options are called “discretionary relief.”

There are five types of discretionary relief:

• Application for waiver of grounds of inadmissibility: People whose qualifying family members would experience extreme hardship due to their removal may qualify for an I-601 waiver.
• Cancellation of removal: Lawful permanent residents who have been in the U.S. for at least seven years and overstayed or unauthorized immigrants who have been in the U.S. for more than 10 years may qualify for a cancellation of removal and adjustment of status.
• Adjustment of status: Someone who is present in the U.S. and otherwise qualifies for a green card may be able to have their status adjusted, usually with the help of family members who are U.S. citizens or lawful permanent residents.
• Request for asylum and withholding of removal: Asylum seekers should file their applications soon after arriving in the United States to get affirmative asylum, but defensive asylum may be an option if they’re already in removal proceedings.
• Voluntary departure: A noncitizen can choose to leave the U.S. without going through removal proceedings, which can prevent some of the negative consequences that come with deportation.

Navigating the different forms of relief can be complicated. Each type has specific criteria and may require further documentation to support your request. It’s best to work with an immigration attorney to pursue one of these options.

You can also file a motion to reopen. By doing so, you ask either the Board of Immigration Appeals (BIA) or another immigration judge to reconsider your case. You may present new facts in the motion to reopen.

An immigration judge or the DHS can grant a stay of removal while you file an appeal or pursue other relief. This temporarily pauses the deportation or removal. Among the cited reasons for a stay of removal are pending appeals, humanitarian reasons, or medical emergencies.

If You’re Facing Deportation, Legal Help Is Available

Failure to understand the removal process could harm your immigration status and lead to deportation. Through this challenging process, it’s wise to seek legal advice from an immigration attorney. An immigration attorney can help find the best type of relief available for your case. They can also gather crucial documents and evidence to support your case.

Remember that talking to an immigration lawyer is safe and protected by law. Many offer initial consultations to help you understand your situation. 

If you or a loved one is facing deportation or removal, contact a local immigration attorney as soon as you can. FindLaw’s directory of immigration attorneys can help you get started. Enter your city or ZIP code for a list of qualified legal advisors near you. Your search results will show other important details about potential attorneys, including ratings, languages spoken, and whether they offer free consultations.